Saturday, February 28, 2015

Editor's Note: Thursday brought the sad news that Professor and former Dean of Hofstra Law School Monroe Freedman died. Freedman was widely regarded as the father of legal ethics as a legal academic discipline. Here is a personal remembrance by his colleague, Professor James Sample.------------------------------------------------------------------------------------------------------------------------
The second time that I went to law school the classroom was a car.

Campus was a daily grind of gridlock.

The professor was my passenger.

Professor’s curriculum consisted of intellect and integrity; of laughter and love. Curricular entry points were as vast as the globe and entirely at Professor’s discretion.

And yet, for Student, the education was glorious. Why? Because Professor was Monroe Freedman.

Occasionally, Professor-Student discussions proved so engaging; so engrossing; that our Driver-Passenger goals suffered inadvertent, but highly actual, detours. It is with particular sadness and joy alike that I will always remember one such occasion.

While driving east from Monroe’s apartment on 38th Street, we were engaged in such a feverish debate over a judicial recusal question that we actually missed the Midtown Tunnel. Neither Driver nor Passenger realized the error until the classroom was perpendicular to a portion of campus we hadn’t previously graced — the East River.

During the consequent series of 90 degree turns by blushing Driver, Professor provided levity and perspective. Laughing as much as speaking (and what a great laugh he had) he observed that while we certainly were not the first to miss a Manhattan turn, he was absolutely certain that we were the first people in New York history to miss the Midtown Tunnel due to an animated judicial recusal discussion.

On the spectrum of distracted driving, texting behind the wheel is a trifle relative to driving while discussing with Monroe. I was profoundly privileged to repeatedly commit the offense.

Monroe was particularly fond of pointing out the alarming regularity with which lawyers and reporters sought our respective opinions as to the same judicial ethics controversies and thereafter publicly memorialized our sometimes opposing conclusions.

No matter what the text of such articles actually said, my anxiety-consumed mind read, in them, the academic analog of a New York Post headline: “Lightweight Disagrees with Legend! Crowd boos!"

Over time I came to realize that Monroe, embodying the best of academe, not only did not resent, but actually relished these awkwardly-public disagreements. He mined them for their teachable potential and as fresh material for his good-natured needling.

As a scholar, as a lawyer, and as a colleague, Monroe was Mickey Mantle. He didn’t have to acknowledge, much less take interest in a comparatively light-hitting minor leaguer trying to secure a roster spot. That Monroe nonetheless always took that interest says much about the man.

Monroe’s massive contributions to the law have been and will be well-documented by scores of scholars, students, family and friends.

For today, in this space, I merely say thank you. The second time that I went to law school it lasted just a year, but the lessons, a lifetime. The professor was a giant and a gentleman. And for the rest of my days, whenever I see the Midtown Tunnel, Monroe Freedman will be on my mind.

Friday, February 27, 2015

Wednesday's SCOTUS decision in Yates v. United States is interesting for what it may say about King v. Burwell--the challenge to the subsidies on federal exchanges to be argued next week--but also, as I'll explain shortly, because of a point made by Justice Kagan in dissent.

In Yates, the Court held that a fisherman who tossed his illegal catch into the sea to prevent federal authorities from confirming his law violation did not violate a statute forbidding the "destr[uction]" of "a tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . ." Did the Court say that fish are sentient beings, someones not somethings, and thus not tangible objects? I--along with the other vegan bloggers here at DoL--can only wish.

No, Justice Ginsburg--writing for a plurality of herself, Justice Breyer, Justice Sotomayor, and Chief Justice Roberts--said: "A fish is no doubt an object that is tangible; fish can be seen, caught, and
handled, and a catch, as this case illustrates, is vulnerable to destruction." Nonetheless, the plurality found that Congress did not mean for the statutory provision, which was enacted to combat corporate and financial accounting deception, to apply to cases like Yates. The surrounding linguistic context and purposes motivating the Sarbanes-Oxley Act indicate that for purposes of this statute, "tangible object" is best "read to cover only objects one can use to record or preserve information, not all objects in the physical world."

Concurring in the judgment, Justice Alito reached the same conclusion but largely eschewed reliance on the subjective motives of the Congress that enacted Sarbanes-Oxley, focusing more narrowly on the linguistic context.

What are the implications for King? There the question is how much of the broader linguistic context and background congressional purpose should be deemed relevant to construing the seeming limitation of federal subsidies for "an Exchange established by the State." Under the methodology applied by the plurality in Yates, the answer would appear to be "a lot of it." That's important because the vote of one of the conservatives is needed to get to five, and based on his vote in NFIB v. Sebelius, CJ Roberts appears to be the most likely one.

Nor is the Chief's Yates vote a fluke. He is probably the least textualist, most intentionalist of the current conservatives when it comes to statutory interpretation--as also indicated by his opinion for the Court last year inBond v. United States(as I discussed here and in a column and other posts linked therein). The government should win in King, unless (as I put it last July) textualism runs amok. Yates confirms that CJ Roberts is barely a textualist at all, much less a textualist run amok.

But if Yates is potentially good news for the government about the Chief's statutory interpretation predilections, might it also be unexpected bad news about Justice Kagan--whose vote had almost surely been counted as nearly certain to find that subsidies are available in King? After all, Justice Kagan wrote the Yates dissent for herself and Justices Scalia, Kennedy, and Thomas. She (and they) found that the plain language prevailed.

The short answer is that there really isn't much of a methological dispute between the plurality (plus Justice Alito)and the dissent in Yates. Justice Kagan writes: "I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not 'construe the meaning of statutory terms in a vacuum.'" That might seem like a departure from the textualist philosophy of Justices Scalia and Thomas, but it isn't. Justice Scalia has been saying for decades that textualism isn't literalism or strict constructionism. Everyone thinks context matters.

When all is said and done, then, Yates probably doesn't say much about how any of the Justices in King will vote. I predict that any Justices who conclude that subsidies are not available on federally established exchanges will say that this result comports with the context and purpose of the statute as a whole. They'll be wrong, of course, but they'll think they're right, and they certainly won't say the key snippet of text stands in isolation from the rest of the law.

To my mind, what makes Yates an interesting case is the little lecture that Justice Kagan delivers at the end of the opinion. She says that the plurality/majority are driven to what she regards as an erroneous construction of the statute because they understandably want to limit the ill effects of overcriminalization. She writes:

I tend to think, for the reasons the plurality gives, that §1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code. But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law.

This form of judicial rhetoric is familiar. Indeed, I remarked upon it just last week in my first post on Judge Hanen's opinion enjoining the Obama Administration's deferred action program. The most famous examples appear in constitutional cases--as when Justice Stewart, dissenting in Griswold v. Connecticut, called the state ban on contraception use "an uncommonly silly law." Justice Thomas quoted that language in his dissent in Lawrence v. Texas. In those cases, as in statutory cases like Yates, the protesting judge or Justice reminds the reader that her job is simply to say what the law is--that finding a law constitutional or that it means something unpopular does not imply that the judge or Justice favors the law or its construction on policy grounds.

Familiar though this rhetorical move is, as I said in my first post on Judge Hanen's ruling, it has a doth-protest-too-much ring about it. After all, anybody who is sufficiently sophisticated to read a Supreme Court opinion or other lengthy judicial opinion already knows that judges are supposed to distinguish between their legal judgment and their all-things-considered political judgment. So why the need for the reminder?

The answer, I think, is that the very fact that these cases are contested by other competent jurists belies the claim that "the law made me do it." Did Justice Stewart really think the contraception use ban was silly? If so, why didn't he find a way to agree with Justice Douglas and the Griswold majority? If he really thought the law left him no room for a contrary judgment, wasn't he saying that the Justices who came out the other way were lying? Put differently, "the law made me do it" is only superficially an affirmation of formalism. It is better seen as a formalist expression of the anxieties to which legal realism gives rise.

Thursday, February 26, 2015

My new Verdict column, "Education Is Everything, but It’s Not the Only Thing," was published today. In it, I discuss the different ways in which education matters to economic outcomes, and the ways in which it does not. I close the article by reminding readers that economic outcomes are hardly the be-all and end-all of education. I might pick up on that latter topic in a future column or a Dorf on Law post, but for now, I will let today's column stand on its own. I encourage everyone to read it.

Here, I will pick up on the theme of my Dorf on Law post from earlier this week. There, I commented (yet again) on the closed-mindedness of the modern economics profession and, in particular, its failure to live up to anything close to the standards of a science (much less a field devoted to free academic inquiry). The basic problem is that current economists are not open to differing modes of analysis, because they are sure that stylized rational-actor modeling is the only correct way to "do economics."

Longtime readers of this blog might recall that I wrote extensively about this state of affairs in a series of posts last Spring. In one of those posts, "Which Jerks Would You Rather Hang Out With? (Economics Edition)," I described the difference between "orthodox" and "heterodox" economists, the latter having been effectively pushed out of all of the top economics departments during the 1970's and 1980's, with the purge continuing into the lesser departments in the 1990's, to the point where there are now only a tiny number of outposts for heterodoxy in the world of economic academia.

Generally speaking, the intellectual purge happened on purpose, but not based on any coherent plan (at least, so far as we know). That is, the people who began to try to drive out the heterodox were generally politically conservative, so they viewed it all as an ideological purge that they could mask by calling it a matter of "science." Meanwhile, the orthodox economists who might have been ideologically sympathetic to the heterodox simply sat on their hands, in part because even liberal orthodox economists truly believe that it is they who are doing real economics, and that the heterodox were losing because heterodoxy is unworthy.

The process was essentially a matter of orthodox economists taking control, slowly but steadily, of all of the levers of power. Editorships of top journals were given to people who rejected out of hand any heterodox work. The editors are quite open about it, too, telling authors that their work must fall within the orthodox framework in order even to be considered for publication. Once publication outlets had been nailed down, the hiring of heterodox economists became a losing cause, which meant that graduate students would be told (reasonably) that they would be committing career suicide if they were to write heterodox work.

At that point, economics departments became closed societies in which everyone could honestly say that they do not know any economist who is not doing orthodox work, which must mean that everyone who is doing heterodox work is not a "real economist." As many people have noted, the ultimate insult from an economist is to describe someone's work as sociological.

In the face of that onslaught, it is actually amazing that any heterodox economists exist at all. Indeed, most of them are plying their trade outside of economics departments: public policy schools, law schools, some business schools (strangely enough), think tanks, labor unions, and so on. Still, there have been some hardy bands of heterodox economists who have tried to defend redoubts within economics departments. Inevitably, however, it seems that every fortification will ultimately fall.

In my post last May, I noted the rather infamous case of the University of Notre Dame (the football school in Indiana), which had long housed a vibrant economics department that was home to both orthodox and heterodox economists. As the 1990's ended, the orthodox economists enlisted the university's administration in a concerted effort to drive out the heterodox. This first resulted in a formal split of the department into two separate departments in 2003, a Department of Economics and Econometrics that was for the orthodox, and a Department of Economics and Policy Studies that was for the heterodox. By 2009, the university had announced that it would close the heterodox department entirely.

An earlier example of this pattern happened at the University of Sydney in Australia two decades earlier, a split that was especially acrimonious. In general, however, such open hostilities are rare. The external norms change, and in rather short order, the orthodox drive out the heterodox.

Even so, new examples occasionally arise. A reader of Tuesday's post directed me to a report on some recent ugliness in the University of Manitoba's economics department, where a long-term happy detente (with a department that was 2/3 orthodox and 1/3 heterodox) was tossed aside by an aggressive new orthodox department chair (backed by the university's president).

That report, written by a special committee of the Canadian Association of University Teachers, is a depressing read. Essentially, it documents what happens when orthodox economists decide to start flexing their muscles. The intellectual insecurity of the orthodox economists there came out in verbal bullying, sneering comments about the heterodox, threats to people who do not vote "the right way" on departmental matters, intimidation of graduate students, and so on. The report describes these incidents with care, but for anyone who has seen this kind of thing in person, the report's understated tone still evokes a chilling recognition of how academic bullies work.

And like all bullies, these guys are afraid. They are afraid because their answers to heterodox critiques are circular. They are afraid because real scientists laugh at their pretensions. They are afraid because at least some of them know that philosophers of science long ago exposed the unscientific nature of the discipline. (Many do not know this, of course, because their professors would never consider it worthwhile to have their students read such things.) And they are afraid because, as I noted in my post on Tuesday, they know that many of the most revered members of their discipline have terrible track records in explaining the world, and especially in providing ideas about how to make the economy work better for everyone. What better way to deal with one's fears than to lash out at those who see the bullies for what they really are?

Wednesday, February 25, 2015

by Michael Dorf
My new Verdict column could be considered the fourth installment in a series on the ruling by Judge Hanen enjoining the Obama policy of expanded deferred action for undocumented immigrants. In Part 1, I criticized Judge Hanen's over-the-top rhetoric and questioned his bottom line about the reviewability of the agency action at issue, but, noting how unreviewable presidential power not to enforce the law should trouble progressives even more than it troubles conservatives, I concluded that the opinion had a silver lining. In Part 2, Professor Buchanan explained how that silver lining might be deployed if and when the debt ceiling shenanigans return next fall. Part 3 was a magnum opus by Professor Kalhan, which revealed how Judge Hanen either misrepresented or misunderstood immigration law and that therefore, contrary to the ostensibly limited ruling, the opinion was anything but "narrowly crafted."

The Verdict column is Part 4. It offers general readers an explanation of the administrative law issues; notes that the government is now pursuing both an emergency stay from Judge Hanen and an appeal to the Fifth Circuit; and evaluates additional options. The government could proceed with a notice-and-comment rulemaking. It could withdraw the executive order but pursue the same policy anyway (given what Judge Hanen says about formalization and discretion). Or President Obama could fold and go back to Congress for comprehensive immigration reform.

That last option is, of course, not serious. The Republican Congress is not going to pass comprehensive immigration reform on President Obama's watch. On the contrary, Congress is deadlocked over whether to fund the Dep't of Homeland Security past Friday, when its current funding runs out. The House passed a funding bill that includes an override of the President's deferred action program. Senate Democrats want a "clean bill." Yesterday Senate majority leader Mitch McConnell offered a clean bill if there were also a debate on a clean bill to invalidate the deferred action program. However, Democrats were balky, saying that they want some assurance that the House would also pass a clean bill. The smart money for now appears to be betting on a clean stopgap measure funding DHS for a few months or maybe only weeks, at which point the whole farce plays out again.

Judge Hanen's ruling does not appear to have affected the politics. One might have thought that House Republicans would soften in their insistence on tying DHS funding to overriding the deferred action program because they have gotten what they want by judicial means: the deferred action program is not going into effect. One might also have thought that Senate Democrats would soften in their opposition to a DHS bill that overrides deferred action for the same reason. But it hasn't worked out that way for what I suspect are two reasons.

First, there remains the possibility that the Obama Administration will win on appeal. Given this possibility, it would be premature for Republicans to think they don't need a congressional override and it would be likewise premature for Democrats to throw in the towel.

Second, it looks as though this is a fight that both sides want to have. In general, immigration is a tough issue for Republicans. House members in safe seats with large white majorities can afford to be--and many are--very tough on immigration. That stance harms the Republican Party elsewhere and nationally but on this issue, as on others, the party leadership has great difficulty getting individual House members (and many Senators) to place the national party's interest over the individual members' electoral interests. Even members of Congress who might otherwise be inclined to moderation are sufficiently fearful of a primary challenge from the extreme right to lean far right on immigration (and various other issues).

But while the Republican national leaders generally would prefer to avoid calling attention to their members' positions on immigration, they appear eager to have this particular fight because they think they can make it about executive overreach, rather than about immigration.

This strikes me as a tactical mistake. As I noted in Part 1 and elsewhere, the Republicans may have base motives but they are not wrong that the mere invocation of "prosecutorial discretion" should not be sufficient to shield presidential non-enforcement of the law. But that is an argument that strikes me as far too sophisticated for typical voters. Yes, Republicans and their allies can also use the claim that "President Obama thinks he's a king" to mobilize their base, but he won't be on the ballot again and the sort of people who are mobilized by this kind of claim are easily mobilized by lots of other messages too. A typical voter will see this fight as over immigration--the Democrats' turf.

If I'm right--and I really have no expertise in political analysis, so I could well be wrong--the Republicans will fold here before the Democrats do. At that point, perhaps I'll write Part 6.

Tuesday, February 24, 2015

As an economist who earned a law degree and now teaches in a law school, I am always interested when news organizations discuss the economics profession. The overwhelming motivation for my lateral career move was that the economics profession is deeply ideological in the worst possible way: Its norms and expectations are strongly tilted toward conservative-friendly conclusions, but it hides behind the veneer of "science" to make it appear that there is nothing subjective about the enterprise.

This is not to say, of course, that one cannot reach non-conservative conclusions from economic models. And it is certainly true that there are liberal economists out there. Even so, the field has come to be dominated by an approach that rewards and emphasizes methods and techniques that strongly skew the analysis toward conservative results.

For example, when the world's most prominent liberal economist, Paul Krugman, wants a "reality check" for his conclusions, he has said that he runs his analysis through models that assume hyper-rational actors, efficient markets, and so on. He emphasizes that he does not believe the assumptions underlying those models, but he thinks it is useful at times to use highly unrealistic models to test his conclusions. Fair enough, but why would he default to the Chicago School's models?

One could argue that, if even those models support liberal conclusions, then one's rhetorical position is strengthened. But Krugman acts as if there are no other reality-checking possibilities out there. He casually dismisses "Post Keynesians" on the basis that they are supposedly obsessed with assumptions and not outcomes. That is true of the models that he embraces, however, and I cannot help but notice that it is the conservative economists who always get Krugman's (grudgingly) respectful attention.

Even so, there is a fundamentally interesting pair of questions that underlies any discussion of the economics profession: Are economists actually influential, and if so, how did that happen?

Justin Wolfers, a mainstream economist at the University of Michigan (who appears to lean left-ish, based on my limited exposure to his writings), writes for The Upshot section of The New York Times. Recently, he addressed those paired questions, in a column intriguingly titled "How Economists Came to Dominate the Conversation." There, he answered the first part of the question above (Are economists influential?) overwhelmingly in the affirmative, showing the heavy reliance on the views of economists in both The Times (with their influence growing notably over time), and in the Congressional Record over the last generation. Moreover, he noted that other academic disciplines -- history, psychology, sociology, anthropology, demography -- have seen some growth in their influence, but nothing like economists'.

Interesting, in its way, but when Wolfers actually tries to answer the question in his column's headline -- How did this happen? -- he has almost nothing to say. His first answer is that economists' influence is cyclical, going up during bad economic times and down when times are good. However, his own data show that economists' influence, even during its recent dips, is much higher than in earlier decades. Also, other than a brief time in about 2000 when they were tied with historians (driven, I suspect by discussions about the historically unprecedented Bush-Gore election), economists clearly dominate the other social sciences.

Wolfers ends the piece with his second explanation, crediting economists' influence to "the discerning tastes of our audience in the marketplace of ideas." His tone is cheeky, but that really is the only explanation he offers: Economists are influential because they deserve to be. Forgive me if I find this unconvincing.

Apparently, someone at The Times was similarly unconvinced, because they subsequently ran a "Room for Debate" column with contributions from three economists and three sociologists, based on the question, "Are Economists Overrated?" I tend to find the "Room for Debate" series tedious and unsatisfying, for reasons not worth exploring here. Even so, this debate had a few notable highlights and lowlights.

The sociologists generally took the position that economists have a pretty bad track record on any number of real-world issues, that they are too narrow in their approach, and so on. The most notable argument, however, was from Philip N. Cohen of the University of Maryland, who argued that economists' apparent influence derives from the fact that they tell rich people what they want to hear:

But economists’ influence is largely proportional to the degree with
which their analysis comports with the interests of those who make the
most influential decisions. The free market orientation, individualist
logic and materialist values of some economists serve well the captains
of industry (or, nowadays, of finance), who in turn reward their
compliant consultants with privileged perches around the seats of power.

Cohen, however, then notes a paradox: "If their influence is dependent on their contribution to
already-powerful agendas, maybe economists don't have as much real
influence as it seems." In other words, economists are overrated because they are simply sock puppets, led to believe that their genius has caused the powerful and the wealthy to listen to them with rapt attention, when in fact economists are disposable and interchangeable mouthpieces for those who are willing to pay top dollar to those who are willing to say useful things. Economists are overrated, then, not just because their track record is so bad, but because their supposed influence is a mirage.

How do the economists defend themselves? Diane Coyle, of the University of Manchester in England, argues that economists deserve to be influential because they believe that there is no free lunch. That is, economists are unpopular (but influential) because they are willing to point to hard truths and difficult tradeoffs. She believes that this is hardwired into economic analysis. She acknowledges that economists "do over-reach sometimes" and that they need to be "humbler." Somehow, however, she concludes that because economists are the people who tell hard truths, they are the only defense against economists who are hubristic and opportunistic.

As nicely counter-intuitive as that sounds, however, she never really explains why economists are uniquely qualified to "call bullsh*t" on people (my words, not hers). There are other people "offering difficult answers," not just economists. Professor Coyle's argument, then, amounts not to a defense of economics or economists, but merely to the unexceptional statement that we should listen to people who are not snake-oil salesmen.

At least Professor Coyle is living firmly on this planet, and her arguments are not ideological. Peter Blair Henry, the dean of NYU's business school, is much less humble. His central claim is that the growth of underdeveloped countries in the last two decades flows directly from their following conservative economists' advice "to reform their economies and embrace a bigger role for markets, freer
trade, countercyclical fiscal policy and greater openness to foreign
capital." Suffice it to say that this argument is highly contestable.

Dean Henry, however, is not finished: "If economists had adequate influence, policymakers in the U.S. and
Europe would already have followed the example of developing countries
and implemented structural reforms of their own, such as simplifying the
tax code and making it easier to hire and fire workers." Yes, the problem with the U.S. and Europe is that it is too difficult to fire workers! The neoliberal vision lives on. Although this blog post is not the place to revisit the arguments against that approach, it is useful to note that Dean Henry is precisely the kind of person whom Professor Cohen was describing, that is, an economist who eagerly says things as if they were undeniably true, and which are exactly what the "captains of industry and finance" want to hear. That does not necessarily make those arguments wrong (although they are), but it certainly makes it more difficult to take seriously Dean Henry's claim that economists should "adopt a modest stance."

All of that, however, is merely prelude for the full-on, raging defense of economics from Professor Charles Plott of CalTech. Professor Plott comes across like the embarrassing uncle who shows up at a family gathering, and after too many drinks starts to fulminate about the things that are stuck in his craw. Most of his piece is devoted simply to describing the "ubiquitous successes demonstrat[ing] that the basic science is healthy." It is all about "[t]he science," which is supposedly providing answers to "promote wealth and increase efficiencies."

What are these successes? Professor Plott essentially says that economics is used a lot, so it must be successful. There are theories that purport to explain "flash crashes," and companies use economics to try to understand things. There are economic theories about antitrust, regulation, and environmental policy. Yes, these theories exist. So what? Well, "no theory outside economics can claim to do a better job." Of course, if one were to point to other theories beyond those that Professor Plott prefers, he could simply call those "economic theories," too, because economists are nothing if not opportunistic. This is the ultimate non-science: There is no falsifiability when the theory is so elastic that it can be adapted to any situation.

Finally, what about ideological bias? "Because economics addresses policy and policy involves social values the
profession and the theory itself evolved to keep ideology and science
separate. All major professional economic associations have by-laws that
prohibit the association from taking stands on policy issues." So, there is a rule that says that we must "keep ideology and science separate." Problem solved. Still doubtful? "[E]conomic models are constructed to separate policy
opinions from the underlying science, with social goals implemented
separately to assess unintended consequences and costs." Which simply makes me wonder where he is looking, because economic models are, and must be, constructed with policy views in mind, and with social goals obviously built into the analysis. (See, e.g., Dean Henry's faux-scientific assertions above.)

The final joke: "Economics is different. It stands out because of its accomplishments
given the very small amount of basic research support it receives (less
that one half of 1 percent of the National Science Foundation budget)." I do not like it when I find myself at a loss for words, but ... wow. Just wow.

Monday, February 23, 2015

by Michael Dorf
Professor Marvin Chirelstein died last week. He was a giant in tax law. With the possible exception of the late great Marty Ginsburg of Georgetown (husband of Justice Ginsburg), Marvin had no rivals in his generation of tax law professors--and given changes in the legal academy, I very much doubt that one will emerge in a later generation.

Marvin's career and personality have been fondly and fittingly eulogized already, including on the official Columbia Law School website, by Dan Shaviro, and by Paul Caron. Here I'll add a few anecdotes and tie them into a thought about Marvin's legacy.

As others correctly note, Marvin had a marvelous dry wit. He was often generous. Larry Zelenak notes (in Paul's entry) the style and grace of Marvin's intellect, citing a 2013 contribution to The Green Bagin which Marvin fondly recalled two great antagonists whom Marvin knew and liked: Robert Bork and Ronald Dworkin. Larry calls attention to the paper in order to illustrate the breadth of Marvin's interests, and I agree that they were broad. Marvin would occasionally provide me with insightful comments about my own writing (typically addressed to "my dear Dorfie", a term of endearment used by no one else, and which, coming from anyone else, would have struck me as somewhat insulting), even though it had no connection to any of his own fields.

Re-reading Marvin's tribute to Bork and Dworkin, I was struck by the following elegiac passage:

Bork and Dworkin held sharply different theories of constitutional interpretation leading to very different results as cases arose. Both are interesting and to some extent persuasive, though, I suspect, less and less a matter of current influence as their major works recede in time. Neither, as far as I can tell, has ever been cited by the Supreme Court for his theory of constitutional interpretation or his appraisal of decided cases. In that sense, like other academic workers in this field, their particular views are transitory and harmless. But perhaps that gives them less credit than they are entitled to. Both have been widely read and have influenced scholarly and to some extent public opinion and each has a devoted political following.

One sees in this passage a wistfulness about the scholarly enterprise. Marvin grants that Bork and Dworkin may have had some lasting influence, but he thinks that the work of legal scholarship is essentially an amusement.

Marvin lived by that assessment. He was never what could fairly be called a highly productive scholar. He wrote very few law review articles and a small number of extremely influential books that were considered absolutely essential reading for students, practitioners, and other scholars. The dismissive term for his work these days would be "doctrinal," or he would be seen as an old-style treatise writer--but Marvin's synthetic work was of such high quality that these characterizations would be grossly unfair. Extremely sophisticated in his understanding of human behavior and institutions, Marvin was skeptical of grand theory. His work aimed to elucidate more than to persuade. It was for him an extension of his teaching.

And Marvin was by all accounts a marvelous teacher. I didn't have the good fortune to be his student, but I knew his reputation as a teacher, and I saw his commitment. Accordingly, I'll close with an anecdote.

About 15 years ago or so, there was some program that had been intiated by either the dean's office or the central university at Columbia, aiming to foster "innovative teaching." I believe that the innovations were meant to take advantage of (what was then) cutting edge technology. Faculty who volunteered to integrate "innovative teaching" into their courses would receive some temporary course relief while they developed their new materials. At the faculty meeting at which this program was described, a colleague who was known as a less-than-stellar teacher was asking a number of questions about how the course relief would work, what would qualify, etc. Marvin sat in his seat with a bemused look on his face and finally interrupted with roughly the following: "What about not boring the students out of their minds? Does that count as innovative teaching?"

Saturday, February 21, 2015

In a comment to Professor Dorf’s piece assessing Judge Andrew Hanen’s opinion and order blocking some of the Obama administration’s recent executive actions on immigration, Professor Steven Shiffrin poses the question of whether the injunction should be understood not as questioning the “prosecutorial discretion aspect” of the Obama administration’s initiatives, but rather as being “concerned with that part of the policy affording affirmative benefits”—an argument that, as he notes, is presented by Professor Michael McConnell in Wednesday’s Wall Street Journal.

According to Professor McConnell’s quick take, Judge Hanen’s opinion “carefully lays out the legal case against the program” and ultimately concludes that “prosecutorial discretion is limited to nonenforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making.” Such “benefits,” he asserts, have “never been part of prosecutorial discretion.” On that basis, McConnell concludes that Judge Hanen “narrowly crafted [his] order not to touch on prosecutorial discretion” and that the decree therefore does not interfere with executive discretion to set enforcement priorities.

McConnell is entirely correct that Judge Hanen at least professes to preserve the executive branch’s ability to establish enforcement priorities and exercise prosecutorial discretion. And it is also true that Judge Hanen exhibits considerable ire over the prospect of “award[ing] … benefits to otherwise removable aliens.” But let’s not be under any illusions: Judge Hanen’s opinion is remarkably sweeping in its tenor and its potential significance—and ultimately does not turn on any sort of distinction between the exercise of prosecutorial discretion, on the one hand, and the extension of “affirmative benefits,” on the other. The ruling should be understood as “narrowly crafted” in the same sense that someone wielding a velvet-lined sledge hammer as a weapon should be understood as “subtle.”

I.

To understand precisely where Professor McConnell gets this wrong, we need to start with and focus on a fundamental mischaracterization of the initiatives in question that McConnell’s essay shares with both Judge Hanen’s opinion and much of the rhetoric about the Obama administration’s initiatives that currently circulates in public discourse. According to McConnell, the Obama administration’s initiatives to expand its 2012 Deferred Action for Childhood Arrivals (DACA) program and to create a new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program “grant[] lawful status to some four million or five million undocumented aliens” who have been in the United States since 2010—as long as those individuals, in McConnell’s words, “had a baby in this country” and “have not committed felonies.”

Judge Hanen’s opinion is littered with similar assertions, including repeated claims that the Obama administration plans to “grant legal status” to millions of undocumented noncitizens, that it “makes the illegal presence of millions of individuals legal,” that it “turn[s] DAPA recipients’ illegal presence into a legal one.” In a set of passages that McConnell relies upon and partially quotes, Judge Hanen’s disdain for the program is palpable:

Instead of merely refusing to enforce the INA's removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent DAPA, these individuals would not receive these benefits. The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for “administrative convenience.” . . . Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. . . .

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that—not enforcing the law. Nonenforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations….

The Government defends DAPA as a measure taken to prioritize removals, and as previously described, the DAPA Memorandum mentions or reiterates some of the Secretary’s priorities. The States do not dispute that Secretary Johnson has the legal authority to set these priorities, and this Court finds nothing unlawful about the Secretary’s priorities. The HSA’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country. [Hanen Order at 86-87, 92]

Judge Hanen’s rhetoric is a bit more restrained than some of the more inflammatory remarks he has made about immigration in the recent past, which have been catalogued innewsreports and in more detail in a report by the immigration advocacy organization America’s Voice. Although not much more restrained. To take just one example among many others, some of which were noted on Wednesday by Professor Dorf, Judge Hanen writes nonchalantly in his opinion about “self-deportation” as if that were a completely noncontroversial, ordinary thing to say.

These claims by both McConnell and Judge Hanen that the Obama administration is trying to “grant lawful status” to millions of undocumented immigrations are at the core of their objections to both programs. The claims are entirely continuous and of a piece with the kinds of accusations that anti-immigration politicians and opinion writers now casually throw around about DACA and DAPA on a routine basis—that the initiatives amount to “executive amnesty,” that they turn “anchor babies” into “automatic human shields” for their “illegal parents” (Rep. Steve King), that they amount to an outright “refusal to enforce our current immigration laws” (Rep. Bob Goodlatte), that they give “illegals … legal status,” (Ben Carson), and even that “in effect” they involve “printing up [and] counterfeiting immigration documents” (Sen. Ted Cruz). And on and on and on. As political rhetoric, the charges leveled by McConnell, Judge Hanen, and these anti-immigration politicians and opinion writers make for useful talking points and arresting sound bites. As legal claims, however, they’re also completely false.

II.

Like all of these anti-immigration politicians, both Professor McConnell and Judge Hanen play rather fast and loose with the facts when it comes to the notions of “lawful status” and “legal presence.” Both DACA and DAPA confer upon its recipients “deferred action,” which in one form or another has been a principal mechanism by which federal immigration officials have exercised prosecutorial discretion for decades. At its core, deferred action constitutes a time limited, revocable notification that federal officials have exercised prosecutorial discretion not to take action against that individual. And nothing more. The Supreme Court acknowledged and described the practice of deferred action in 1999, in the opinion for the Court by Justice Scalia in Reno v. American-Arab Anti-Discrimination Committee:

At each stage [of the deportation process] the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience. As one treatise describes it:

To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated. [Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 483-84 (1999)]

Literally for years at this point, both Obama administration officials and other observers—including immigration law scholars with significant expertise on these matters—have emphasized what the Supreme Court itself implicitly recognized in that case: deferred action does not confer any lawful status under the immigration laws. Indeed, standing alone, deferred action confers no benefits of any kind: it simply amounts to a memorialization and notification of the exercise of prosecutorial discretion. As Professor Hiroshi Motomura aptly described it in 2013, deferred action itself amounts to little more than the following: “If the president can make a list to prioritize who should be deported first, then I think it’s clear that he can give people at the bottom of that list a piece of paper saying you’re at the bottom.”

To be sure, in practice, once individuals are notified they have been granted deferred action—whether under DACA, DAPA, or otherwise—they could be understood to subsequently receive a highly limited form of quasi-legal recognition. As Geoffrey Heeren elaborates in an excellent forthcoming law review article, deferred action is only one of many longstanding forms which that quasi-legal recognition for noncitizens can take, forms that he collectively refers to as “nonstatus.” Indeed, as both Linda Bosniak and Gerald Neuman have explained in different ways, in important law review articles published many years ago, that kind of quasi-legal recognition necessarily and invariably extends in varying forms and degrees to all undocumented immigrants—without regard to deferred action or any other form of “nonstatus”—insofar as both constitutional and statutory law have never fully excluded undocumented immigrants from the ambit of legal protection and recognition in the United States altogether.

But any such quasi-legal recognition is considerably more limited than the kind of fully legal recognition extended to individuals with any kind of temporary or permanent lawful immigration status. Moreover, such recognition invariably arises from other federal, state, and local legal authority—not from the grant of deferred action itself, which confers no benefits. Deferred action itself is therefore inherently and necessarily tenuous and temporary and, contrary to what both McConnell and Judge Hanen assert, scarcely amounts to “lawful status”—either under the immigration statutes or in the everyday parlance that they evidently mean to use. In fact, the tenuous nature of deferred action is a significant reason why large numbers of individuals who are eligible for DACA have chosen not to apply. Nobody has any substantive right to apply for deferred action, and any particular grant of deferred action may be revoked by DHS at any point and for any reason. More broadly, the DAPA and DACA programs could be curtailed or rescinded altogether by the next president or, for that matter, by President Obama himself. (For example, if Congress were to dramatically increase its appropriations for DHS’s enforcement and removal operations—let’s arbitrarily say a five-fold increase—and President Obama were to sign that appropriations legislation into law, that might affect the extent to which the administration would choose to leave DAPA and DACA in place in their existing forms.)

As a result—notwithstanding what Judge Hanen insisted in his opinion, with evident alarm—there is nothing “irreversible” about deferred action or the DACA and DAPA programs. To the contrary, deferred action is reversible by its very nature. The programs might very well be difficult to reverse politically once instituted—but it is difficult to see why that should be legally relevant to any court in deciding whether or not to grant an injunction unless it wishes to operate as a transparently political actor. And yet, the clear implication in the rhetorical sleights of hand fashioned by both McConnell and Judge Hanen is that these initiatives somehow create a rigid, durable form of “lawful status” under the immigration laws that flouts the will of Congress—a form of “executive amnesty,” if you will, that turns “anchor babies” into “automatic human shields” for their “illegal parents” and gives “illegals . . . legal status.” As the actual nature of deferred action makes clear, that suggestion is misleading in the extreme.

III.

To see those rhetorical maneuvers in action, consider the manner in which Judge Hanen quotes information—selectively and out of context—from the “Frequently Asked Questions” page on the government’s website concerning DACA. According to Judge Hanen, the government necessarily concedes in that FAQ that DACA confers “affirmative status” when it states the following:

[Y]ou are considered to be lawfully present in the United States . . . and are not precluded from establishing domicile in the United States. Apart from immigration laws, “lawful presence,” “lawful status,” and similar terms are used in various other federal and state laws. [Hanen Opinion, at 95]

However, that passage refers exclusively to the interpretation of the definition of “unlawful presence” in a specific provision of the INA, governing bars on future admissibility for individuals who have previously been “unlawfully present.” The statement has no bearing on lawful immigration status. Because of the complicated way in which Congress has drafted the immigration statute—making it a “hideous creature,” as Professors Stephen Legomsky and Cristina Rodríguez put it in the very first sentence of their immigration law casebook—the definition of “lawful presence” under that provision has a number of exceptions and qualifications, and is not coextensive with the meaning of “lawful status” under the immigration laws. Indeed, that is precisely the point of the passage on the DHS website that Judge Hanen quotes: terms like “lawful status” and “lawful presence,” as used in various federal and state law contexts, do not have a uniform and shared legal meaning and are not always coextensive with the core meaning of “lawful status” for immigration law purposes.

Tellingly (and conveniently), Judge Hanen decided not to quote the language immediately preceding the very passage that he cherry picks:

Q5: If my case is deferred, am I in lawful status for the period of deferral?A5: No. Although action on your case has been deferred and you do not accrue unlawful presence (for admissibility purposes) during the period of deferred action, deferred action does not confer any lawful status. The fact that you are not accruing unlawful presence does not change whether you are in lawful status while you remain in the United States. [USCIS]

In a number of different ways, DHS emphasizes the same point around half a dozen times on the very same page of its website: deferred action does not provide lawful status under the immigration laws or a path to citizenship. Judge Hanen, however, does not bother even to acknowledge that fact—much less to engage its legal significance—and instead chooses to try to hide the ball.

A related sleight of hand is even more obviously incorrect. According to Professor McConnell, DAPA “dispense[s] with” two sets of statutory provisions: first, a requirement that U.S. citizens and permanent residents be above the age of 21 to sponsor their parents to become lawful permanent residents, and second, a ground of immigration inadmissibility that presumptively bars individuals from being admitted to the United States for ten years if they leave after being unlawfully present for more than a year. (While McConnell claims that both of these provisions “have been part of statutory law for 60 years,” in fact Congress did not enact the ten-year bar into law until 1996). The language of “dispensing with” is itself significant and revealing, insofar as it implies that President Obama is somehow asserting a power to suspend or “dispense with” duly-enacted legislation, akin to the “dispensation” powers historically claimed by the papacy or English monarchs. Anti-immigration politicians and opinion writers now routinely make similar claims when they accuse President Obama of acting like a king or an emperor—or even engaging in “domestic Caesarism”—with his administration’s immigration initiatives. And in his opinion, Judge Hanen, too, makes very much the same kinds of claims when he asserts that the Obama administration’s initiatives “clearly circumvent[] immigration laws,” “establish[] a pathway for non-compliance and completely abandon[] entire sections of this country’s immigration law,” and involve “not just rewriting the laws [but] creating them from scratch.”

McConnell’s own assertion would have an element of truth if DAPA purported to give its recipients green cards and lawful permanent resident status—and might even have a more limited grain of truth if it purported to give its recipients temporary nonimmigrant visas. However, deferred action of course does no such thing—and, as such, the program “dispenses with” precisely none of what McConnell claims that it does. Noncitizens who are eligible for DAPA remain subject to the ten-year prospective inadmissibility bar, and their U.S. citizen and lawful permanent resident children remain unable to petition on their behalf for lawful permanent resident status before reaching the age of 21. More broadly, the Obama administration can hardly be accused of suspending or dispensing with the enforcement of the immigration laws. To the contrary, the administration has not only enforced those laws to the maximum extent of its appropriated funds, but in so doing has removed more individuals than any other administration in U.S. history, at a clip that now exceeds 400,000 individuals per year. Immigrants’ rights advocates have pointedly called President Obama the “deporter in chief” for enforcing the immigration laws so aggressively; current and former Obama administration officials, by contrast, have defended the vigorousness of their approach to enforcement. No matter which side has the better of that argument, the fact and nature of the emergent regime of mass deportation at the heart of that dispute gives any suggestion that the Obama administration has suspended or dispensed with “entire sections of this country’s immigration laws”—to put it charitably—an exceedingly odd, “through the looking glass” quality.

IV.

Judge Hanen is not wrong in observing that individuals who have been granted deferred action (whether under DACA, DAPA, or otherwise) can become eligible to seek some affirmative benefits—albeit benefits that are considerably more limited than those available to individuals who are in fact lawfully present in the United States. But as noted above, the availability or non-availability of any such benefits is governed by separate legal authority and administrative guidance that long predate DACA and DAPA. Like the question of “unlawful presence” for purposes of the prospective inadmissibility bar, questions concerning eligibility for those benefits are therefore conceptually separate from the questions concerning an individual’s immigration status and the exercise of prosecutorial discretion.

If Judge Hanen’s ruling were really confined to the question of benefits, then one also would expect the opinion to devote some attention—indeed, any attention—to analyzing the federal, state, or local legal authority that governs whatever benefits troubled him. However, having devoted an enormous amount of ink making a complete hash out of analyzing the “lawful status” that DAPA and DACA supposedly confer, Judge Hanen’s opinion then proceeds to devote essentially no attention at all to the question of whether the executive branch has legal authority, whether inherent or delegated, to extend benefits to individuals who are granted deferred action under DACA, DAPA, or otherwise.

Take, for example, employment authorization. Eligibility for employment authorization for deferred action recipients is not governed by the DACA or DAPA programs, but by regulations that predate those programs by decades. Indeed, under DACA and DAPA, applications for deferred action and for work authorization are not even submitted using the same forms—strictly speaking, they are separate application processes governed by completely different criteria. Since at least the 1960s, the executive branch has exercised delegated authority to grant and deny employment authorization to various categories of noncitizens—including recipients of deferred action, but only to those who could affirmatively show an economic necessity to work. Formal, codified regulations have governed those practices and procedures since 1981. When Congress adopted the Immigration Reform and Control Act of 1986, it legislated against the background of those practices and regulations and recognized this executive authority more expressly by statute, defining noncitizens’ eligibility for employment in the United States to include individuals “authorized to be so employed by this Act or by the Attorney General” (emphasis added). Soon after IRCA was enacted, the INS denied a formal petition (which was filed before IRCA was enacted) to rescind these employment authorization regulations as beyond its legal authority. In denying that petition, INS noted Congress’s express recognition and preservation of its regulatory authority in IRCA while the petition was pending.

Since then, pursuant to these longstanding regulations, executive officials have continued to grant employment authorization to individuals granted deferred action only upon a showing of economic necessity to work. That same legal standard applies to applications for employment authorization by individuals granted deferred action under DACA and DAPA. While Congress has made many major changes to the immigration laws in the years since then, including a number of changes concerning statutory eligibility for employment authorization itself, at no point has it sought to curtail the executive branch’s authority to grant or deny work authorization to recipients of deferred action under this longstanding regulatory regime.

In the current litigation challenging DAPA and expanded DACA, the parties have jousted to some extent in their briefs over this legal authority concerning employment authorization. In Judge Hanen’s opinion, however, the question of executive legal authority to grant work authorization plays no role whatsoever. Aside from a passing reference in an extended block quote of the DHS memorandum initiating DAPA, and a couple of references to the governing regulations for a different substantive purpose, Judge Hanen does not cite or bother to engage the statutory provision or regulations governing the Attorney General’s authority to grant employment authorization. At all. If the ruling genuinely were meant to be “narrowly crafted” to questions about “granting illegal aliens benefits not allowed by law,” as Professor McConnell states, then Judge Hanen’s complete lack of interest in the actual statutes and regulations that authorize those benefits makes very little sense.

But hey, why bother with mind-numbing technicalities about immigration law when you can instead go on and on for dozens of pages with colorful grandstanding about “self-deportation,” the “specter of terrorism,” the “severe law enforcement problems” that allegedly arise from the “constant influx of illegal immigrants,” the states’ claimed loss of “badly needed tax dollars each year due to the presence of illegal aliens,” the Obama administration’s creation of “pathways for non-compliance,” its practices of “intentionally allow[ing] known illegal aliens to enter and remain in the country,” its “announcement” of its “abdication of its statutory duties,” its proclamation that it has “no intention of enforcing the laws promulgated to address millions of illegal aliens residing in the United States,” and its “awarding of legal presence to millions of illegal immigrants.” (Oh, and as Professor Dorf notes, Obamacare. I guess Benghazi wasn’t available.) I mean, we all know that’s how federal judges really show the world that their rulings are “careful,” “thoughtful,” and “narrowly crafted.”

V.

Let’s assume, for the sake of argument, that the characterization of Judge Hanen’s ruling as “narrowly crafted” were correct. If Judge Hanen’s opinion genuinely had been “explicitly confined” to “the grant of work authorization and affirmative benefits,” then surely that’s what we would expect the injunction itself to explicitly and narrowly focus on as well. (Even on that assumption, it remains somewhat doubtful that there would be sufficient “irreparable harm” to the states who are plaintiffs in this litigation to justify a preliminary injunction in the first place, but I’ll leave that to one side.)

An injunction along those lines might have blocked the issuance of employment authorization documents or whatever other “benefits” Judge Hanen were concerned with, but it would have let DHS proceed with its plans under the DAPA and expanded DACA programs to accept and grant applications for deferred action itself—which, after all, has been a principal means by which immigration officials have implemented their exercise of prosecutorial discretion for decades, as discussed above. If Judge Hanen really meant to preserve the authority of federal officials to exercise prosecutorial discretion, then there would be no basis to enjoin the process by which those officials grant deferred action under the Obama administration’s initiatives, since that is what deferred action is—nothing more and nothing less.

To be sure, the number of DAPA- and expanded DACA-eligible individuals willing to come forward and seek deferred action under those circumstances almost certainly would be considerably more limited than in the absence of those benefits. But that kind of injunction might be consistent with a ruling that was “narrowly crafted” to prevent (as Professor McConnell puts it) “granting illegal aliens benefits not allowed by law.”

Instead, however, Judge Hanen’s injunction bludgeoned the Obama administration’s initiatives in their entirety. The injunction did not simply block DHS from conferring “benefits” that Judge Hanen believed to be impermissible, or even from accepting and processing applications for those benefits. Rather, it enjoined federal officials “from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (‘DAPA’) program” and “from implementing any and all aspects or phases of the expansions (including any and all changes) to the Deferred Action for Childhood Arrivals (‘DACA’) program.”

Perhaps the sweeping nature of the injunction should not be surprising in light of the sweeping nature of the substance of Judge Hanen’s opinion. While much public discussion of the ruling has emphasized its formally narrow disposition—the basis of the decision in the Administrative Procedure Act’s notice-and-comment provisions, and the opinion’s express reservation of both constitutional questions and any conclusion about the legality of DAPA and expanded DACA on the merits—Judge Hanen does not leave a whole lot of doubt about where he stands on those issues. As Professor Eric Posner notes in Slate, the opinion is “pregnant with constitutional rhetoric that suggests he sympathizes with the critics’ arguments.” And, as discussed above, pregnant with plenty of non-legal rhetoric that makes those sympathies all but crystal clear.

VI.

At its core, therefore, Judge Hanen’s ruling seems best understood as fundamentally calling into question deferred action as a legitimate means of exercising prosecutorial discretion altogether—and in addition, as questioning the substantive criteria and means established by the Obama administration under DACA and DAPA to exercise that prosecutorial discretion. Which also, necessarily, entails a challenge to the ability of executive branch officials to establish and meaningfully implement enforcement priorities and exercise discretion to carry out those priorities.

In the immigration context, the executive branch’s prioritization of certain categories of potentially removable noncitizens is not simply authorized by Congress under its broad delegations of immigration authority—including both express delegations and what Professors Adam Cox and Cristina Rodríguez term “de facto delegations”—but also derives from a direct congressional mandate. For example, appropriations legislation in recent years has directed executive officials to prioritize deportation of individuals with convictions for “violent crimes,” and of course the resources appropriated by Congress are themselves not sufficient to seek and effectuate removal of more than a fraction of the individuals who are potentially removable under the immigration laws—particularly given the extent to which Congress has dramatically expanded the categories of individuals who are potentially subject to removal. (And unlike in many other contexts, without any statute of limitations.) To give effect to the administration’s enforcement priorities in this context, DACA and DAPA establish categorical eligibility criteria for the exercise of prosecutorial discretion—along with, as is frequently neglected, categorical disqualifying criteria that render ineligible many individuals who might otherwise qualify—and then confer discretion upon lower level officials to make case-by-case determinations about whether to grant deferred action.

For Judge Hanen, this approach does not genuinely constitute the exercise of “prosecutorial discretion.” Indeed, for Judge Hanen, programs like DAPA and DACA are “not a necessary adjunct for the operation of the DHS or for effecting its stated priorities” at all—because presumably, on his view, the individuals who might be eligible already are lower enforcement priorities and everyone involved in the enforcement process will simply recognize and heed that automatically. “By the very terms of DAPA,” he concludes, DHS already has been exercising prosecutorial discretion “for these recipients [of DAPA] for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for ‘administrative convenience.’”

What this somewhat confused statement appears to add up to is a conclusion that deferred action itself might be somehow illegitimate—whether granted under categorical programs such DACA or DAPA or under the largely unguided and unsupervised practices that have been in place for decades. Genuine prosecutorial discretion, Judge Hanen seems to be saying, must not only involve purely case-by-case decision-making, but also ad hoc and unguided decision-making that takes place without any supervision or direction from senior officials. Both of those conclusions are problematic when applied to DAPA and DACA. For one thing, as Professors Eric Posner and Cass Sunstein have both emphasized, DACA and DAPA actually do, in fact, involve case-by-case decision-making: discretion remains for lower-level officials to deny requests for deferred action even when individuals satisfy the eligibility criteria.

But at a more fundamental level, Judge Hanen also seems to be saying that senior executive officials should be restricted or perhaps even disabled altogether in the exercise of their own discretion to create a framework for supervising the exercise of prosecutorial discretion by lower level officials in a manner that ensures uniform and consistent execution of the agency’s enforcement priorities—which is precisely how DACA and DAPA can and should be understood. For many years before DACA was first implemented, immigration agency officials had issued guidance to the field on what the agencies’ enforcement priorities were and how lower level officials should exercise discretion to carry out those priorities. However, contrary to the picture painted by Judge Hanen—in which the rational and uniform exercise of prosecutorial discretion somehow just magically happened on its own these past five years, precluding any need for programs like DACA and DAPA—enforcement patterns in the field often diverged significantly from the enforcement priorities and guidelines for the exercise of discretion set from above, in part due to Congress’s dramatic expansion in the categories of individuals who are potentially deportable, in part due to the massive growth in the scale of enforcement that has occurred as a result, and in part due to resistance to those priorities by officials in the field, in the form of what immigrants’ rights lawyer Ahilan Arulanantham goes so far as to characterize as an “insurrection.”

The extent to which supervised, categorical approaches to prosecutorial discretion might be justified in the interest of uniformity, consistency, and predictability has been much less prominent in debates over DACA and DAPA than arguments about resource constraints and humanitarian considerations, although it has been noted at least in passing as a rationale by a handful of scholars, including Professors Hiroshi Motomura, Gillian Metzger, and Sai Prakash. However, the limited attention given to this rationale should not cause us to minimize its significance. Especially as the scale of immigration enforcement has grown to such massive levels—making the task of ensuring uniformity and consistency in the execution of the law and the implementation of enforcement priorities an even more formidable challenge—the need for appropriate and effective supervision of lower level discretion has only grown more important. On Judge Hanen’s view, however, senior executive branch officials apparently would be required to, well, “abdicate” any responsibility to supervise lower level discretionary decision-making and let the vagaries of the bureaucracy reign supreme.

VII.

What exactly is at stake in whether or not Judge Hanen’s ruling is characterized as a narrow and minimalist ruling? In instrumental terms, both critics and defenders of the Obama administration’s initiatives have incentives to characterize the decision as a narrow one. For defenders of the administration’s initiatives, characterizing Judge Hanen’s decision as narrow might help to forestall a potential “chilling effect” in immigrant communities that could result from any impression that Judge Hanen has dealt a fatal blow to those programs. From this perspective, if immigrant communities perceive DAPA and expanded DACA as vulnerable, then individuals who are eligible for DAPA and expanded DACA might be intimidated from applying if and when the programs are reinstated. That chilling effect could also extend to applications to renew deferred action under the original DACA program, even though that program is not affected by Judge Hanen’s ruling.

For critics of these initiatives, characterizing Judge Hanen’s ruling as a narrow one might be understood as helpful in their attempts to legitimate the decision as a reasonable one—to make the decision seem less radical, sweeping, or “off the wall,” as Professor Jack Balkin would put it, than it actually is. (Which is not to suggest that Professor McConnell himself is motivated by such instrumental ends in presenting his argument, but simply to observe that the characterization itself may be relevant to how Judge Hanen’s decision is perceived and understood.) When it comes to immigration, Judge Hanen has amply demonstrated—well before President Obama announced his most recent executive actions—that he has very strongly held personal views on the subject. While those opinions made Judge Hanen an especially appealing judge for Republican governors when they were shopping for a judicial district in which to file their lawsuit, they may be a bit less convenient now, as defenders of Judge Hanen’s decision try to assimilate that ruling into the legal mainstream. Attempting to characterize Judge Hanen’s decision as modest or narrow in some fashion might seem useful in trying to temper his earlier, inflammatory comments and to rehabilitate his public image.

At the same time, if we’re simply concerned in non-instrumental terms with characterizing Judge Hanen’s ruling in an accurate manner, then both sets of responses seem off the mark. Interestingly, politicians critical of the Obama administration’s immigration actions have been eager to defend Judge Hanen’s ruling in considerably more maximalist terms than McConnell—for example, characterizing the decision as having definitively concluded that the initiatives are “illegal” and “unconstitutional” because they create a form of “executive amnesty.” These political comments may be no less instrumental insofar as they reinforce the points these Obama administration detractors have long been trying to score; to some extent, those politicians also may simply be offering those characterizations in aid of their ongoing legislative fight to tie funding for DHS to proposals that seek to eliminate the Obama administration’s programs. At another level, however, these politicians make a perfectly reasonable observation, for to conclude that Judge Hanen’s ruling is in any sense “narrowly crafted” appears to seriously miss the forest for the trees.

Friday, February 20, 2015

In my Verdict column for this week, I discuss the case of Rodriguez v. United States, which raises the question whether police may, absent reasonable suspicion, extend an already-completed traffic stop to allow for a dog sniff for narcotics. In my column, I focus on two questions that interested the Justices during oral argument: what difference the order of police activities during a traffic stop should make, and which questions and activities by police are and are not legitimate incidents of a traffic-related stop. The sequencing question basically asks whether it matters that police in this case conducted the entirety of the traffic-stop-related activity (including issuing the written warning) before conducting the extra step of having a dog sniff for narcotics rather than having instead interrupted the traffic-related inquiries and activities for a dog sniff and then continued on with the traffic-related matters. Several Justices and the government attorney expressed the view that such sequencing should not matter at all to the Fourth Amendment, and I am generally inclined to agree with this position.

In this post, however, I want to explore one potential argument for saying that sequencing may matter sometimes. The argument is not a strictly legal argument, but if the Fourth Amendment inquiry takes into account the individual's subjective experience during a police encounter, then it may bear on the "reasonable seizure" question.

In 2003, Redelmeier et al. published a field study in which patients receiving a colonoscopy were randomly assigned to one of two groups. In one group, the colonoscopy would take as long as a colonoscopy typically takes, with all associated unpleasantness, and would end as soon as the procedure was complete. In the other group, the tip of the colonoscope would be left inside the patient's rectum for a short period of time after the procedure itself was complete. This study was conducted back in a time when patients were generally fully conscious during such procedures and therefore fully experienced the accompanying pain and discomfort. Both groups of patients, then, experienced the very unpleasant colonoscopy itself, but one group also experienced an also uncomfortable--but less uncomfortable--ending to the procedure, in addition to the procedure itself.

Following their procedures, patients were asked to characterize the painfulness of the colonoscopy as well as of the final moments (in the group that had the additional part added). The results showed that the patients whose colonoscopies were longer (because they were given the add-on) rated the add-on portion of the colonoscopy as unpleasant but not as unpleasant as the procedure itself. In addition, and most interestingly, the patients having the longer procedure (because of the add-on) rated their entire experience as less unpleasant than did the patients whose colonoscopies were shorter (because they did not receive the add-on). The patients with the longer experience also had a higher rate of return for a repeat colonoscopy.

Even though the two groups of patients both experienced the more intense discomfort of the procedure itself, the ones with the less negative memories and overall assessments of what happened were those who were subjected to additional (though less uncomfortable) discomfort at the end of the procedure. The study tends to support the notion that memory is not a full catalogue of an individual's entire experience but instead selectively records the peaks (the intense pain) as well as the endings in what occurred. With a less painful (though still unpleasant) ending, the patients having longer colonoscopies apparently had their memory of intense pain somewhat mitigated or diluted by the ending. By contrast, the patients with the short but only more painful experience had nothing to mitigate the memory and therefore left with a more negative recollection. Given the add-on patients' greater willingness to return for colonoscopies in the future, the logical (though perhaps counter-intuitive) proposal that might come out of this study would be to extend colonoscopies unnecessarily to give patients something less unpleasant to remember.

Why do I bring up this colonoscopy/memory study in connection with the Rodriguez case? I do so because the question of sequencing--when police decide to conduct a dog sniff--might matter to a suspect's overall experience of the traffic stop, even if it does not alter the total time that the police encounter takes (that is, the traffic-related inquiries plus the dog sniff). If we assume that the suspect stopped for a minor traffic violation experiences the extended detention for a dog sniff as an alarming and thus very unpleasant development, then it may be that having this occur at the end of the encounter, after the written warning (or ticket) has already been issued, will make it especially memorable in a bad way, like a very painful ending to a colonoscopy. And if the suspect, as we might imagine, experiences the traffic-related inquiries as less unpleasant interventions, then having the dog sniff in the middle of the stop and ending with more traffic-related inquiries could perhaps soften the blow. If this is true, then perhaps it would make sense for the Supreme Court to classify an extra detention for a dog sniff differently, depending on whether it takes place during or after the traffic-related portion of the stop.

Ultimately, I do not think it would be legitimate (not to mention remotely likely) for the Supreme Court to consider the way in which subjective memory works as a factor in resolving the sequencing question (if it in fact resolves this question at all in this case). But because a significant part of our experience of the world happens in the remembering of prior experiences, rather than simply in the experiencing in the moment, it seems relevant and noteworthy to consider the possibility that despite contrary appearances, the sequencing of intrusions by police may matter a great deal to how suspects (and people who are stopped more generally) come to feel about what happened to them on the highway, after police have signaled them to pull over. Even if it makes no difference to the Fourth Amendment, moreover, it may be something that police departments consider in setting policy for their officers in the conduct of stops.

Thursday, February 19, 2015

Ed Whelan, whose views I discussed in Part I, has suggested that I did not accurately represent his position. He wrote the following (quoting from an earlier work and leaving out a line or two about originalism):

[T]he justification for the definition of marriage as the union of a man and a woman is the same now as it was in 1868. Marriage developed in this country, and everywhere in human civilization, because societies recognized that opposite-sex couples generally have the capacity to procreate. Marriage exists to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence. As Prop 8 proponents showed in their Supreme Court brief (pp. 31-35), leading thinkers over the centuries—including many on the Left, like Bertrand Russell, anthropologist Claude Levi-Strauss and sociologist Kingsley Davis—have consistently recognized the central connection between marriage and responsible procreation and child rearing. This basic truth was commonly acknowledged until the recent movement to redefine marriage to include same-sex relationships made it fashionable to deny or obscure it. (Just a word or two on [the] claim—which I think irrelevant to the original-meaning inquiry—that the redefinition of marriage to include same-sex couples wouldn’t harm the institution of marriage. How odd to imagine that denying the central connection between marriage and responsible procreation and child rearing, and redefining marriage to eliminate that connection, won’t have a damaging long-term effect on the strength of that connection. Further, the New York Times tells us that there is plenty of reason to think that marriages of same-sex couples are much less likely to model the marital norms of fidelity and monogamy.)

I don’t mean to suggest that Segall’s misrepresentations of my position were intentional. I would suggest, though, that if you’re responding to someone else’s argument, it’s a good discipline to quote the key parts of that argument. Among other things, that will make it more likely that you actually understand the argument that you’re contesting. (Emphasis added.)

I stand by my post. Nothing in the above shows a rational connection between the welfare of children or the strength of marriage and bans on same sex marriage that don't amount to legal animus towards gays and lesbians. The underlying assumptions of these kinds of arguments are that gays can't be as good parents as heterosexuals (false and animus-related), or that marriage is so much about procreation that allowing non-procreative couples to marry would or could hurt the institution. No reasonable person can look at the current laws surrounding marriage in any state of the country and come away with the notion that procreation is the central feature of marriage. No heterosexual couple is ever asked by any government official anywhere, anyplace whether they want children or plan on ever having children.

Judge Posner has persuasively demonstrated that there is no connection between the welfare of children or marriage and bans on same sex marriage. Here is a list of unanswerable questions he asked at the oral argument demonstrating the lack of any such connection, and his decision.